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Exhibit
10.3
AMENDMENT TO PROMISSORY NOTE,
BUSINESS LOAN AGREEMENT AND
SECURITY AGREEMENT
THIS AMENDMENT TO PROMISSORY NOTE, BUSINESS LOAN AGREEMENT AND
SECURITY AGREEMENT ("Amendment") made this 8th day of January, 2009
by and among Allin Corporation , a Delaware corporation,
Allin Interactive Corporation, a Delaware corporation, Allin
Network Products, Inc., a California corporation, Allin Holdings
Corporation, a Delaware corporation, CodeLab Technology Group,
Inc., a Delaware corporation, Allin Investment-Delaware, Inc., a
Delaware corporation and Allin Investment-Cal, Inc., a Delaware
corporation, all with a current mailing address of c/o Allin
Corporation, 400 Greentree Commons, 381 Mansfield Avenue,
Pittsburgh, Pennsylvania 15220-2751 (collectively, the
"Borrower")
S & T BANK , having its office at
800 Philadelphia Street, Box 190, Indiana, Pennsylvania 15701,
(hereinafter referred to as "Lender").
WITNESSETH:
WHEREAS, Allin Corporation, a Delaware corporation, Allin
Interactive Corporation, a Delaware corporation, Allin Network
Products, Inc., a California corporation, Allin Holdings
Corporation, a Delaware corporation, CodeLab Technology Group,
Inc., a Delaware corporation, Allin Consulting of Pennsylvania,
Inc., a Pennsylvania corporation, and Allin Corporation of
California, a California corporation (the "Original Borrower")
executed and delivered to Lender a Promissory Note dated
December 20, 2007 (the "Note") in the original principal
amount of Two Million Dollars ($2,000,000.00), (the "Loan")
representing sums advanced or to be advanced pursuant to a Business
Loan Agreement between the Original Borrower and the Lender dated
December 20, 2007, as such Business Loan Agreement may be
amended, modified or supplemented from time to time (the "Loan
Agreement");
WHEREAS, as security for the Loan, each entity comprising the
Original Borrower entered into a Commercial Security Agreement,
each agreement dated December 20, 2007 (collectively, the
"Security Agreements, and in the singular, a "Security Agreement"),
granting to Lender a Security Interest in the Collateral (as
defined in each Security Agreement);
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WHEREAS, such Note and Loan Agreement were
modified by a Change In Terms Agreement, dated May 18, 2008
(the "First Amendment");
WHEREAS, the parties hereto desire to amend the Note, the Loan
Agreement, and all other documents executed in connection with the
Loan (the "Loan Documents") to inter alia, remove Allin
Consulting of Pennsylvania, Inc., a Pennsylvania corporation
and Allin Corporation of California a California corporation
as Borrower and add Allin Investment-Delaware, Inc., a Delaware
corporation and Allin Investment-Cal, Inc., a Delaware
corporation as Borrower and terminate the Security Agreements
executed by Allin Consulting of Pennsylvania, Inc., a
Pennsylvania corporation and Allin Corporation of California
a California corporation .
NOW THEREFORE, in consideration of the foregoing recitals, and
in further consideration of the mutual covenants contained herein,
and intending to be legally bound hereby, the parties hereto agree
as follows:
1. The foregoing recitals are incorporated herein and made a
part hereof, as and for the agreement of the parties.
AMENDMENTS
2. Allin Corporation of California, a California corporation and
Allin Consulting of Pennsylvania, Inc., a Pennsylvania corporation
are hereby deleted as Borrower and released from liability and
obligation under the Note, Loan Agreement and the other Loan
Documents. Allin Investment-Delaware, Inc., a Delaware corporation,
and Allin Investment-Cal, Inc., a Delaware corporation, are hereby
added as Borrower and each of them hereby agree to be bound by all
of the terms, conditions, duties and obligations of the Note, Loan
Agreement and the other Loan Documents as if they were a party to
such documents at the time they were originally executed. All
references in the Loan Documents to the Borrower shall hereafter be
deemed to refer to Borrower as comprised of Allin Corporation, a
Delaware corporation, Allin Interactive Corporation, a Delaware
corporation, Allin Network Products, Inc., a California
corporation, Allin Holdings Corporation, a Delaware corporation,
CodeLab Technology Group, Inc., a Delaware corporation, Allin
Investment-Delaware, Inc., a Delaware corporation, and Allin
Investment-Cal, Inc., a Delaware corporation.
3. Effective upon execution of this Amendment, that certain
Commercial Security Agreement by and among Allin Corporation of
California as Grantor, the Original Borrower and Lender, dated
December 20, 2007 (the "Allin California Security Agreement")
is terminated. Lender’s security interest in the Collateral,
as defined in the Allin California Security Agreement (the "Allin
California Collateral"), is released.
4. Effective upon execution of this Amendment, that certain
Commercial Security Agreement by and among Allin Consulting of
Pennsylvania, Inc. as Grantor, the Original Borrower and Lender,
dated December 20, 2007 (the "Allin Pennsylvania Security
Agreement") is terminated. Lender’s security interest in the
Collateral, as defined in the Allin Pennsylvania Security Agreement
(the "Allin Pennsylvania Collateral"), is released.
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5. Following execution of this Amendment, Lender
agrees that it shall, within a reasonable period of time, file UCC
Financing Statement Amendments with the Secretary of State of the
State of California and with the Department of State of the
Commonwealth of Pennsylvania, as applicable, to release the Allin
California Collateral and the Allin Pennsylvania Collateral,
respectively. In addition, financing statements shall be filed with
the State of Delaware perfecting Lender’s security interest
against Allin Investment-Delaware, Inc., a Delaware corporation and
Allin Investment-Cal, Inc., a Delaware corporation.
6. The execution of this Amendment to Promissory Note, Business
Loan Agreement and Security Agreement shall be deemed the execution
of a Note in the amount of Two Million and 00/100 Dollars
($2,000,000.00) upon the terms and provisions contained in the
Note executed by Borrower in favor of Lender, dated
December 20, 2007, as modified by the First Amendment and this
Amendment, and shall serve as additional evidence of
Borrower’s liability, promise and undertaking, to repay the
outstanding principal sum of up to Two Million and 00/100
Dollars ($2,000,000.00) to Lender in accordance with the terms,
covenants, provisions and conditions contained in the Note, the
Loan and Security Agreement and the other Loan Documents, and as
modified herein, which terms, covenants, provisions and conditions
are incorporated herein by reference thereto.
7. Anything contained herein to the contrary notwithstanding,
this Amendment to Promissory Note, Business Loan Agreement and
Security Agreement t will not forfeit the precedence or prior in
time lien or priority of the financing statements or any other
security held by the Lender, its successors and assigns, on the
Collateral as defined in the Loan Agreement.
8. BORROWER HEREBY IRRECOVABLEY AUTHORIZES AND EMPOWERS ANY
ATTORNEY OR THE PROTHONOTARY OR CLERK OF ANY COURT IN THE
COMMONWEALTH OF PENNSYLVANIA , OR ELSEWHERE, TO APPEAR AT ANY TIME
FOR BORROWER AFTER A DEFAULT UNDER THE NOTE AND WITH OR WITHOUT
COMPLAINT FILED, CONFESS OR ENTER JUDGMENT AGAINST BORROWER FOR THE
ENTIRE PRINCIPAL BALANCE OF THE NOTE AND ALL ACCRUED INTEREST, LATE
CHARGES AND ANY AND ALL AMOUNTS EXPENDED OR ADVANCED BY LENDER
RELATEING TO ANY COLLATERAL SECURING THE NOTE AND ALL ACCURED
INTEREST, LATE CHARGES AND ANY AND ALL AMOUNTS EXPENDED OR ADVANCED
BY LENDER RELATING TO ANY COLLATERAL SECURING THE NOTE, TOGETHER
WITH COSTS OF SUIT, AND AN ATTORNEY’S COMMISSION OF TEN
PERCENT (10%) OF THE UNPAID PRINCIPAL BALANCE AND ACCRUED
INTEREST FOR COLLECTION, BUT IN ANY EVENT NOT LESS THAN FIVE
HUNDRED DOLLARS ($500) ON WHICH JUDGMENT OR JUDGMENTS ONE OR MORE
EXECUTIONS MAY ISSUE IMMEDIATELY; AND FOR SO DOING, THE NOTE OR A
COPY OF THE NOTE
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VERIFIED BY AFFIDAVIT SHALL BE SUFFICIENT
WARRANT. THE AUTHORITY GRANTED HEREIN TO CONFESS JUDGMENT AGAINST
BORROWER SHALL NOT BE EXHAUSTED BY ANY EXERCISE OF THAT AUTHORITY,
BUT SHALL CONTINUE FROM TIME TO TIME AND AT ALL TIMES UNTIL PAYMENT
IN FULL OF ALL AMOUNTS DUE UNDER THE NOTE. BORROWER HEREBY WAIVES
ANY RIGHT BORROWER MAY HAVE TO NOTICE OR A HEARING IN CONNECTION
WITH ANY SUCH CONFESSION OF JUDGMENT AND STATES THAT EITHER A
REPRESENTATIVE OF LENDER SPECIFICALLY CALLED THIS CONFESSION OF
JUDGMENT PROVISION TO BORROWER’S ATTENTION OR BORROWER HAS
BEEN REPRESENTED BY INDEPENDENT LEGAL COUNSEL.
COVENANTS, REPRESENTATIONS AND
WARRANTIES
9. The Borrower confirms and agrees that the terms:
"Loan Document" and "Loan Documents" as defined in the Loan
Agreement each include within their respective meanings this
Amendment and all other documents and instruments executed or to be
executed by the Borrower in connection with the Amendment, which
are collectively referred to herein as the "Amendment
Documents."
10. The Borrower ratifies, confirms and reaffirms, without
condition, all the terms and conditions of the Loan Agreement and
the other Loan Documents and agrees that it continues to be bound
by the terms and conditions thereof as amended by the Amendments;
and the Borrower further confirms and affirms that it has no
defense, set off or counterclaim against the same. The Loan
Agreement and the Amendments shall be construed as complementing
each other and as augmenting and not restricting the Lender’s
rights, and, except as specifically amended by the Amendments, the
Loan Agreement shall remain in full force and effect in accordance
with its terms.
11. Except to the extent that the Allin California Collateral
and the Allin Pennsylvania Collateral is released in paragraphs 3
and 4 hereof, the Borrower ratifies, confirms and reaffirms without
condition, all liens and security interests granted to Lender
pursuant to the Loan Agreement and the Loan Documents, as defined
in the Loan Agreement, and such liens and security interest shall
continue to secure the indebtedness and obligations of the Borrower
to the Lender under the Loan Agreement, the Note and the other Loan
Documents.
12. The Borrower represents and warrants to the Lender that:
(a) This Amendment and the other Amendment Documents have been
duly executed and delivered by the Borrower and constitute the
legal, valid and binding obligations of the Borrower enforceable in
accordance with their respective terms;
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(b) The execution and delivery of this Amendment
by the Borrower and the performance and observance by the Borrower
of the provisions hereof and the Amendment Documents, do not
violate or conflict
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